Like a roar of the lion, Prime Minister Imran Khan’s powerful speech reverberated in the UN corridors. The world watched in awe. The already simmering Kashmir pot just got more heated. In his UNGA speech, the prime minister laid bare some cold hard facts before the world.
He also made an appeal to global consciousness regarding Kashmir unlike any done in history at the august UN podium. The Kashmiris never had an ambassador of his resolve and grit. A new battle of wills is underway. Contrast this with the preceding 72 years. The Kashmir issue was buried deep under the rug. Come 5th August, and all hell broke loose.
India trespassed on its constitution and international law, but above all, reason, which has brought India, Pakistan, and Kashmir to a new fork in the road – a road that can go in several directions. The Kashmir equation today is a strange mix of aspirations, choices, blunders, and wills.
Today’s Kashmir canvas only has shades of grey as things are no more black and white. It’s still very much about the law. But differently. Hitherto hidden nuances are taking center stage. The reason is beginning to rear its head.
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The New Echo
A familiar but ignored echo is beginning to resonate — that of the right of self-determination of Kashmiris. The most recent being the resolution passed by the UK Labour Party supporting this right to be realized under UN resolutions. Till date, Pakistan never adequately focused on the Kashmiris’ right of self-determination.
Its diplomatic guns always targeted ‘territory,’ e.g., slogan “Kashmir Banega Pakistan“. India had progressively extinguished voices in Kashmir, calling for realizing this right. Within Kashmiris, too, self-determination was pursued at the fringes but never in the mainstream.
All this will now change. India will use more brute force to suppress Kashmiris. However, this can’t work indefinitely. Kashmir and Pakistan, for the first time in history, will be agreeing on the same thing in the same sense: self-determination of Kashmiris.
It brings us to the larger question: what is self-determination as a right, and what does it mean in the context of Kashmiris? More importantly, what are the realistic chances of Kashmiris realizing this right in the charged terrain that is today’s world politics?
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The Legal Framework
The lynchpin UN Security Council or UNSC Resolution No. 47 (1948) on Kashmir notes the desire of India and Pakistan that “the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite.”
Important words that have been the basis of Pakistan’s claim over Kashmir; the choice laid bare is: Kashmir goes to either India or Pakistan. But what about the Kashmiris? Although UNSC resolutions on Kashmir are as valid today as in the past, like any other international instrument, they too are clothed with a meaning bestowed by history and context.
The universe of laws is never static and is continuously expanding in the charged world of politics. Over the years, Pakistan’s ‘territorial’ claim in respect of Kashmir was corroded by India managing to equate it with terrorism.
But that’s one side of the story. While the legal lexicon on Kashmir is rooted in history, the nuance that shapes its future discourse is its ‘people’ – the 8 million Kashmiris caged in the world’s largest prison. And the ‘people’ have now inevitably taken center stage. Here, the rubber hits the road.
Pakistan’s policy shift from ‘territory’ to ‘people’ can whet the world’s appetite to provide the momentum to resolve the Kashmir dispute as per the aspirations of the Kashmiris. The international media coverage of Indian atrocities in Kashmir by leading media houses and the prime minister’s hectic diplomacy have gotten the ball rolling for Kashmiris. It’s now a matter of upping the ante further and taking it to the next level.
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Self-Determination – the Law
International law on self-determination of peoples is a strange beast. It has the visage of an all-encompassing remedy, yet it falls short on delivery. Barring a few self-determination movements that have met with success, the majority have fallen victim to global amnesia.
On the other hand, all self-determination movements got their shape in the unique historical milieu. The fate of any campaign – including Kashmiris – will, therefore, be determined by the force of will, circumstance and some luck.
The right of self-determination figures prominently no less in Article 1 of the UN Charter. It is also proclaimed loudly in two lynchpin international human rights instruments, i.e., the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESR). At a general level, it is “the right of a people to freely determine their political status and place in the international community”.
Evolution of the Concept
The corpus of international law on self-determination evolved in the decolonization context. UNGA Resolution 1514 (The Decolonization Declaration) provides that the right accrues only in the context of peoples subjected to “alien subjugation, domination and exploitation”. This UNGA resolution did not address whether the right extends to people in non-colonial States.
It also did not allow unilateral secession by prohibiting an act “aimed at the partial or total disruption of the national unity and territorial integrity of the country” which the UNGA called a violation of the UN Charter. In a departure from this rule, UNGA Resolution 2625, passed in 1970, qualified the concept of territorial integrity in UNGA Resolution 1514.
It states that the prohibition in Resolution 1514 on violation of territorial integrity applies only to those States “conducting themselves in compliance with the principle of equal rights and self-determination of peoples”. In other words, if a country did not conduct itself by “self-determination of peoples”, its territorial integrity could be questioned.
But that’s one side of the story. While the legal lexicon on Kashmir is rooted in history, the nuance that shapes its future discourse is its ‘people’ – the 8 million Kashmiris caged in the world’s largest prison. And the ‘people’ have now inevitably taken center stage.
Self-determination is now recognized as jus cogens (a fundamental principle of international law from which no derogation is possible) and erga omnes (an obligation owed by a country to all other countries in the world).
The International Court of Justice, The Hague, (ICJ) has, over the years, rendered important decisions to elaborate on the scope of this right, although the majority of those decisions have been in the colonial context and a definition of who constitutes the ‘people’ is glaringly missing.
On the whole, the right has evolved from being considered a mere “political aspiration” to a more concrete one with a “discernable core content”. In the landmark ICJ advisory opinion, i.e., the Wall Judgement (2004) issued regarding the Israeli wall in occupied Palestinian territory; the ICJ confirmed that under UNGA Resolution 2625 “Every State has the duty to refrain from any forcible action which deprives peoples…of their right to self-determination.”
It would include foreign military intervention, aggression, and occupation. The ICJ also noted that “every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle…”.
What is the duty of every State? Not to recognize the illegal situation; not to render aid or assistance in maintaining the unlawful status; to make sure that the illegal situation does not hamper the realization of the peoples’ right to self-determination. The ICJ also referred to the need for the UN, the UNGA, and UNSC to consider further action required to bring to an end the illegal situation in Palestinian territory, taking into account the ICJ’s advisory opinion in question.
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The East Timor Case
One can count the instances of success of self-determination movements on fingers. One such example is that of East Timor – a case that is cited with much derision in the Muslim World as symbolic of the double standards of the world community. However, that is missing the forest for the trees.
The UN action on East Timor led to meaningful developments in the law of self-determination. In his paper titled The Right of Self-Determination: Is East Timor a Viable Model for Kashmir?. Amardeep Singh argues that post East Timor, self-determination extends to the creation of a “new State from a territory with uncertain status” and justifies international intervention in situations where a State denies self-determination to a people. He draws crucial parallels between Kashmir and East Timor, as follows.
The first is uncertainty. The status of Kashmir like East Timor is uncertain because, in terms of international law, it is unclear whether Kashmir is legally a part of India or Pakistan or an independent territory. Second, process. The UNSC has laid down “free and fair plebiscite” as the means to an end for the people of Kashmir.
Third, international intervention. Even assuming that the above does not justify foreign intervention in favor of Kashmir, massive human rights violations in Kashmir call for Kashmir’s secession and global response. What then are the practical options available to Pakistan within the existing framework of international law?
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Snowball further legal momentum!
Pakistan is forcefully highlighting India’s massive human rights violations in Kashmir at global forums. Leading media houses have covered Kashmir as headline news. Pressure on India is piling by the day. Numerous US and UK legislators have recorded their protest against Indian actions while the European Union has urged a peaceful resolution of the Kashmir dispute.
All this is building unprecedented pressure on India. It will reach its crescendo once India lifts the curfew and Kashmiris start protesting en masse against Indian atrocities. Soon, Pakistan should consider tabling the Kashmir question at the UNGA.
Through aggressive diplomacy on the backing of China and other sympathetic countries which are increasing in number by the day, Pakistan should garner global support for a UNGA resolution to refer the Kashmir question to the ICJ for an advisory opinion under Article 96 of the UN Charter.
UNGA derives power from UN Charter’s Article 10 which provides that it “…may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.”
The UNGA resolution will likely require a simple majority of the UNGA members. It is Pakistan’s only recourse at the ICJ. However, India can avoid ICJ’s compulsory jurisdiction because of its 1974 declaration. If Pakistan manages to garner UNGA Members’ support for an ICJ advisory opinion, this can swing further momentum Pakistan’s way.
Although the ICJ’s advisory jurisdiction is not binding per se on Member Countries, the ICJ’s case law confirms that advisory opinions are intended to assist the other UN organs such as the UNSC and the UNGA in discharging their activities. The ultimate test of Pakistan’s foreign office will be to ensure that the legal question over Kashmir is framed to cover the legal status of both the ‘territory’ and the ‘people’.
The US and UK are examples of diplomatic rout faced after the issuance of an adverse ICJ advisory opinion. The UK took possession of the Chagos archipelago in 1814 and held onto it after Mauritian independence through coercive pressure on pro-independence leaders. The UK had also leased one of the Chagos islands to the US for use as a military base. In the Chagos Case (Advisory Opinion, February 2019), the ICJ ruled that the UK must hand over control of the islands to Mauritius.
The ICJ reiterated that respect for self-determination is an erga omnes obligation of all States. It also noted that while it is for the UNGA to pronounce on the modalities required to ensure the completion of the decolonization of Mauritius, all Member States must co-operate with the UN to put those modalities into effect.
But what followed the ICJ’s opinion is far more critical: In May 2019, 116 countries voted in favor of a UNGA resolution that demanded the UK withdraw its “colonial administration” from the Chagos Islands unconditionally within six months. Notably, India, too, voted in favor of this UNGA resolution!
Pakistan must not lose sight of these essential recent international developments. Playing its cards tactfully, Pakistan can further weaponize its Kashmir lawfare and add more momentum to the Kashmiris’ struggle. Depending on how events churn out in Kashmir, at some stage, the UNSC’s intervention will be required under the UN Charter to pass a fresh resolution on Kashmir.
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That, however, must follow once the ICJ advisory opinion solidifies the legal base. In the East Timor Case, the instability in Indonesia in 1998 led Portugal (colonial power) and Indonesia (occupying power) to enter into an agreement that allowed the UN to carry out a popular consensus.
The consent resulted in the East Timorese rejecting Indonesia’s autonomous framework, Indonesia terminating its links with East Timor, transfer of authority to the UN, and East Timor’s independence.
Also, the UNSC’s creation of the International Force for East Timor (INTERET) acting under Chapter VII of the UN Charter after massive violations of human rights in East Timor, has established a precedent for international intervention in situations where the right of a people to self-determination is threatened by State aggression.
Kashmir’s struggle for international nomenclature has finally arrived at a crucial crossroads. The word ‘self-determination’ will start echoing with more intensity. The world will slowly wake to this reality, if not for altruism per se, for its interests: to avoid a collision course between two nuclear-armed neighbours. In any event, the world’s appetite has whetted.
Pakistan will need to double down on its efforts to make sure that the international lens stays focused on the ‘people’. The ultimate challenge will be to find ‘content’ and ‘meaning’ for the Kashmiris’ right of self-determination. The best way to do this is by utilizing all the right moving parts of the international machinery, starting from the ICJ’s advisory opinion to the UN’s broader institutional framework. It was never easy; if ever there was a good time to do this, it is now.
Hassan Aslam Shad is the head of practice of a leading Middle Eastern law firm. He is a graduate of Harvard Law School, USA, with a focus on international law and corporate law. Over the years, Hassan has written extensively on topics of law including public and private international law and international relations. Hassan has the distinctive honor of being the first person from Pakistan to intern at the Office of the President of the International Criminal Court, The Hague. You can reach him at veritas@post.harvard.edu. His Twitter handle is @HassShad.
The views expressed in this article are author’s own and do not necessarily reflect the editorial policy of Global Village Space.